Brancusi’s Le Baiser: in life and in death15/07/2021
Brancusi’s Le Baiser: in life and in death
Council of State, 9th and 10th chambers, 2 July 2021, no. 447967
The funerary ensemble, consisting of (i) the funerary stele and (ii) the sculpture Le Baiser (The Kissing) implanted on it, forms an immovable by nature and not an immovable by destination; consequently, the State was not obliged to obtain the agreement of the statue’s owners in order to register it as a historical monument.
The stars almost aligned: on July 6, International Kissing Day, the Council of State handed down a decision on Brancusi’s sculpture entitled The Kiss four days earlier.
Nevertheless, Le Baiser is still on everyone’s lips. Made in 1909, the monolith is part of a series of 40 other Baisers, from which it differs in size (90 cm) and subject matter (two lovers embracing). Perhaps it stands out even more because of its position, attached to the stele of Tatiana Ratchewskaïa, a young Russian woman in France who fell in love with her teacher and whose suicide put an end to her love affair in 1910. It should be noted that the statue predates the student’s death and the erection of her grave by one year.
The contemporary heirs of the deceased, aware of the pecuniary value of the work, wished to remove the statue and requested authorisation to do so. Opposed to this, the prefect of the Ile-de-France region registered the entire tomb as a historical monument in 2010: the sculpted group and the base forming a stele. The order was first confirmed by the Paris Administrative Court on 12 April 2018, then overturned by the Administrative Court of Appeal. The latter considered that (i) on the one hand, the work of art had not been designed from the outset to embellish the burial site in question, and (ii) on the other hand, it could not be considered to be incorporated into the site to such an extent that it could not be dissociated from it without damaging the building complex itself. This decision was overturned by the Council of State.
The central legal question is that of the qualification of the statue with regard to the funerary stele to which it has been attached: immovable property by nature or immovable property by destination? This is an important issue because the regime of registration as a historical monument, as provided for by the Heritage Code, depends on this classification:
– If it is an immovable by nature, registration does not require the consent of the owner of the property.
– If it is an immovable by destination, subject to the same regime as movable property under the Heritage Code, then registration requires the consent of the owner of the property; failing this, the State may override this refusal, provided that it compensates the owner.
Immovable property by nature concerns “the land and everything attached to it (buildings and plants) and incorporated into it“, whereas immovable property by destination “is property that is physically movable, but which the law considers fictitiously as immovable“. This is notably the case of “statues (…) when they are placed in a niche made expressly to receive them”, even though they could “be removed without fracture or deterioration“.
The High Administrative Court, perhaps appropriately, adopts a flexible conception of the concept of property by nature by stating that the statue is “an element of this edifice which lost its individuality when it was incorporated into the funerary monument, regardless of the circumstance that the work was not created for this purpose by Constantin Brancusi, or that it was installed a few weeks after the death of the young woman“. As can be seen, the criterion for qualifying as immovable by nature becomes that of the intention of the person who incorporates the statue into an immovable, even after its creation, and no longer that of the intention to incorporate it into the immovable from the moment of its creation, as had previously been ruled.
Moreover, the Court says nothing about the detachable nature of the statue, whereas on the one hand the Administrative Court of Appeal had considered that “the sculpture “Le Baiser” cannot be considered as being incorporated into the immovable elements of the sepulchre to such a degree that it cannot be dissociated from them without damaging the whole itself or the integrity of the work itself”. On the other hand, Article 525 of the above-mentioned Civil Code seemed to be applicable, as the statue could “be removed without fracture or deterioration“.
The rightful claimants, who had already invoked the violation of the right to property under Article 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms due to the inscription of the statue as a historical monument without consent or compensation, could continue their legal battle before the European Court. This is an opportunity to find out the position of this Court on the decision of the Council of State and on the fact that the absence of compensation for the damage resulting from this classification is not unconstitutional.
By Adrien Rouleau for the IP/IT team of UGGC Avocats
 The sculpture in question could be worth 10 million euros: V. Antoine Bourdon, Le Baiser de Brancusi : la justice retirer le titre de Monument historique à la sculpture, Connaissance des arts
 Order n° 2010-480 of 21 May 2010
 TA Paris, 12 April 2018, n°1609810/4-3
 CAA Paris, 11 December 2020, n°18PA02011
 See point 12 of the appeal judgment
 See point 13 of the appeal judgment
 L. 621-25 of the Heritage Code
 L. 622-20 of the Heritage Code: “Movable objects, either movable as such or immovable by destination (…) belonging to a private person may only be registered with his consent”
 Malaurie, Aynes, Julienne, Droit des biens, Droit civil, 8th edition, LGDJ, 2019, n°126 citing articles 518, 519, 520, 521 and 523 of the Civil Code
 Ibid, n° 138, citing article 524 of the Civil Code
 Article 525 in fine
 CE, 2 July 2021, n° 447967
 CE, 24 February 1999, aff. Des bas-reliefs du château de la Roche-Guyon: judged that bas-reliefs made in the 18th century to be placed in the grand salon were immovable by nature and not by destination.
 Appeal judgment cited above, point 13
 TA judgment cited above, point 20
 DC, Constitutional Council, 16 Dec. 2011, no. 2011-207